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  1. I. INTRODUCTION

I. INTRODUCTION

We call this project the “Frog Project” and we call ourselves the “Frog Team.” Although we each have had longstanding interests in various privacy policies, the catalyst for bringing us together was revisiting a column in The New York Times, which quoted Laurence Tribe, referencing an old parable about a frog relishing the warmth of his bath, only to find it gradually getting unbearably hot. As Tribe stated in the context of privacy:

The more people grow accustomed to a listening environment in which the ear of Big Brother is assumed to be behind every wall, behind every e-mail, and invisibly present in every electronic communication, telephonic or otherwise—that is the kind of society, as people grow accustomed to it, in which you can end up being boiled to death without ever noticing that the water is getting hotter, degree by degree. 1

Tribe’s reflections, and our own experiences, initially led us to an informal weekly discussion session on privacy-implicated matters. We began by revisiting materials familiar to all students of civil liberties—the famous Supreme Court discovery of a “right to privacy”2 in the penumbras of the Bill of Rights,3 the revisiting of the origins of this right in Roe v. Wade, 4 and the expansion of the Court’s interest from

1 Bob Herbert, What’s Left Unsaid, N.Y. TIMES (Jan. 23, 2006), https://www.nytimes.com/2006/01/23/opinion/whats-left-unsaid.html.

2 See generally Jamal Greene, The So-Called Right to Privacy, 43 U.C.DAVIS L.REV., 715 (2010) (discussing the use of the right to privacy as the legal basis for court cases moving forward); see also Bert-Jaap Koops et al., A Typology of Privacy, 38 U. PA. J. INT’L L. 483 (2017) (discussing broadly the right to privacy in a contemporary context).

3 See Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

4 Roe v. Wade, 410 U.S. 113, 152 (1973).

personal autonomy matters to more of the surveillance issues of the twenty-first century.5 But what became clear to all of us very quickly was how limited these doctrinal considerations were, and how they dramatically lagged exploring privacy matters in domains that affect most of us the majority of the time.

The gap between our “old reliable” court cases and our daily experiences gave birth to this project. We were interested in “things privacy,” and were determined to discern the public opinion about the water seemingly getting hotter—maybe even getting to the boiling point! We were resolved to explore this issue without prejudgment—without wringing our hands about a public cringing in the rapid advent of a dystopian world. There were many ways to proceed, but we opted for exploratory, open-ended, qualitative data collection rather than for a more rigorous (and confining) quantitative approach. More details about our approach can be found in the research design section below.6 Here we note our overarching research interest—to understand responses to the often-mind-boggling pace of technological innovations and the implications of these innovations for one’s privacy. Although our goals included gingerly testing some hypotheses, for the most part, our interests were descriptive: learning how the public felt about a range of privacy issues, and from these views teasing out more themes that capture, in nuanced ways, public attitudes—or lack thereof—on the bathwater very quickly heating up.

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